1. ' ABDUL RASHEED MEMOM (MEMBER-II).--Mr. Hayat Kamal and Engineer of Karachi Development Authority has come before the Tribunal under section 4 of the Sindh Service Tribunal Act, 1973 with the t Bowing facts.
2. ' That he is a Graduate Engineer and was initially appointed as Assistant Executive Engineer on 20- 10-1976 in BS-17 and promoted as Executive Engineer on 3-5-1984. The Private Respondents Nos.2 to 11 were initially appointed as Assistant Engineers in BS-16 on different dates and were upgraded and subsequently redesignated as Assistant Executive Engineers in the circumstances given herein below. The respondents Nos.2 to 6 are presently serving as Superintending Engineers while respondents Nos.7 to 11 are serving as Executive Engineers. That all these respondents have been granted seniority in violation of rights and interests of the appellant. At the time when appellant was appointed as Assistant Executive Engineer respondents Nos.2, 4 and 5 were then working as Assistant Engineer's who had also applied for direct appointment as Assistant Executive Engineer were, however, unsuccessful. According to K.D.A., employees Service Regulations, 1973 the qualification for appointment as Assistant Engineer was degree in Engineering with some seats reserved for promotion from amongst departmental employees. The qualification required for the post of Assistant Executive Engineer was also that of degree in Engineering. However, 75% posts were to be filled in by initial recruitment and 25% of the posts by promotion from Assistant Engineers working in the department. He has thus stated that posts of Assistant Engineer and Assistant Executive Engineer belong to different cadres as mode of recruitment was altogether different, therefore, separate Seniority Lists were prepared/maintained by the Authority However, in February, 1974 Government of Sindh vide Notification dated 12-2-1974 allowed Graduate Engineers, appointed either. By 'initial appointment or promotion to be allowed similar pay and benefits that were available to Assistant Executive Engineers. Thus, K.D.A. Vide Resolution No,391 dated 8-9-1974 decided to grant Junior Class-I status to Assistant Engineers possessing degree in Engineering with effect from 28-3-1972. That appellant as further contested that by virtue of this Resolution the respondent No,1 had, only conferred the post of Junior Class-I to the Assistant Engineers who possessed the degree. In Engineering and, therefore, respondents Nos.2 to 11 continued to hold the substantive post of Assistant Engineer with the status of Junior Class-I. This had no bearing on the holders of substantive post of Assistant Executive Engineer which post was already in Class-I (Grade-17). Separate Seniority Lists used to be issued for both the cadres which have been placed on the record. Subsequently in the year 1977 respondent No,1 redesignated Assistant Engineers as Assistant Executive Engineers in view of Resolution No,210, dated 11-5-1977. It also allowed integration of the seniority with effect from same date. That on 31-12-1977 respondent No,1 circulated tentative Seniority List wherein the appellant was shown at serial No,32 and the respondents Nos.2 to 11 were placed below the appellant. However, on representation of some Assistant Engineers the respondent No,1 issued a final Seniority List dated 5-11-1980 wherein all the Assistant Engineers and Assistant Executive Engineers were given combined seniority. This was done arbitrarily despite the fact that some of the said Assistant Engineers had been found unfit for appointment as Assistant Executive Engineers in Grade-17, when they had applied for such appointment, alongwith the appellants. The appellant and others being dissatisfied and aggrieved by this Seniority Lists, submitted departmental representations as the said Seniority List was in manifest violation of Service Regulations. Getting no positive response from respondent No,1, they filed Constitutional Petition D-190 of 19081. The High Court allowed the said petition vide its orders dated 6-11-1982. In compliance with the judgment of the High Court a new Seniority List was issued on 25-9- i983 which restored the position of appellant. On appeal to the Honourable Supreme Court by the respondents vide Civil Appeals Nos.30 of 1987 and 521-K of 1990 which was disposed off by Supreme Court on the question of jurisdiction and without going into merit of the case, as no Constitutional petition was .Maintainable, with the observations that the law subject has since been clarified vide two Judgments of the said Court 1989 SCMR 1879 and 1986 SMCR 1. Therefore, respondent No,1 should follow these judgments and decide the seniority, accordingly.
3. ' In the meanwhile promotions are allowed to the appellant as well as respondents on the basis of the combined Seniority List, therefore, the respondent No,1 was to decide the issue expeditiously in accordance with the law. However, instead of deciding the issue in accordance with the judgments of the Supreme Court the respondent No,1 issued a Seniority List of Executive Engineers in September, 1992 and 1994 which were found to be contrary to the laid down principles. The appellant filed departmental appeal/representation on 4-10-1999. Some of the affected Executive Engineers filed Constitutional Civil Petition No,D-2337 of 1992 challenging the said list, as not being in accordance with the two judgments of Honourable Supreme Court. This petition was dismissed on 9-12-1993. The appellant filed contempt application before the Supreme Court for noncompliance of its orders and while the said application was pending the Sindh Service Tribunals Act was amended and enforced which, inter alia, declared the employees of respondent No,1 to be civil servants for the purpose of Sindh Service Tribunals Act, 1973. The matter came up before the Honourable Supreme Court on March 5, 1998 wherein the petition was disposed off. The appellant obtained the certified copy of the order which was delivered to him on 27-7-1998. The appellant filed a representation dated 4-4-1998 but there was no decision.
4. ' In view of the foregoing facts and the grounds as narrated above, the appellant has prayed this Tribunal (a) to declare that the respondents Nos.2 to 11 were absorbed against the post of Assistant Executive Engineers with effect from 21-5-1977 (b) declare that the Seniority List of the respondents Nos.2 to 11 as Assistant Executive Engineers is only to be counted with effect from 21-5-1977 (c) to declare that the appellant was and has always been senior to respondents Nos.2 to 11 as Assistant Executive Engineers and is entitled to continue the seniority in the cadre of Assistant Executive Engineers and so also in the cadre of Executive Engineers and (d) to direct respondent No,1 to issue a fresh Seniority List Placing the name of the appellant ahead of respondents Nos.2 to 11 with further benefits and consequential promotion.
5. ' Respondent No,1, however, in their written statement have stated that-the two Seniority Lists of Executive Engineers for the years 1992, and 1994 have been challenged and in fact being different, the same could not be challenged in one and single appeal; as such instant appeal of appellant is liable to be dismissed on this ground. Giving the facts of the matter they have stated that the appellant had hopelessly wasted their time in, pursuing the matter before the authorities not empowered to hear the issues and thus the appeal has become hopelessly time-barred and that the departmental appeal was also rejected on the same ground as being time-barred. Therefore, the appeal before this Tribunal will also become incompetent for which reliance has been placed on 1995 SCMR page 1505. They have stated that appellant was recruited in BS-17 in the year 1976 when prior to his induction in K.D.A. All private respondents were working in BS-17 and it is a settled law that Appointment Order entails all consequences including seniority. That for the purpose of- seniority in a particular grade, regular appointment is the determining factor and seniority in a post, service- or cadre to which a Civil Servant is promoted would take effect from the date of regular appointment to the post.. As the appellant was regularly promoted as Executive Engineer on 3-5-1984 i,e, 3 to 4 years later than private respondents he could not be declared senior to private respondents without getting his promotion antedated. As the promotions of private respondents in BS-48 were earlier, over and above appellant which clearly debars him from claiming any seniority vis-a-vis the private respondents. The Seniority List of 1980 became final and private respondents being employees of answering respondent acquired vested right of service in BS-17, BS-18 and BS-19 prior to appellant. The appellant is estopped to file present appeal by his own conduct because he fully knew his position in 1980 list. Thus, viewed from whatever angle the appellant has no case against any of the impugned Seniority Lists. While denying the contents of para. 2 of the memo. Of appeal, it has been vehemently denied that all the private respondents had been shown senior in violation of the rights and interests of the appellant. It is specifically pointed out the K.D.A. Had circulated final Seniority List of Assistant Executive Engineers as stood on 19-6-1979 on 5-11-1980 and according to this very Seniority List the seniority position of appellant as well as all private respondents were notified as under:-- {{TABLE}} S.No,in List Name Date of appointment/ Promotion.
6. 11 Mr. Azam Massod/R.No,10 25-9-1973 12 Mr Amantillah/R.No,2 5-12-1973 15 Mirza M. Naveed/R.No,3 8-2-1974 17 Mumtaz Ali/R.No,4 26-2-1974 20 Aslam Pervez/R.No,5 21-8-1974 29 Shakeel Allahwala/R.No,6 7-6-1975 33 A. Shakoor Palejo/R.No,11 17-6-1975 35 Manzoor Hussain/R.No,8 15-8-1975 37 Muhammad Siddiq/R.No,7 15-8-1975 38 Wali Muhamamd/R.No,9 1-11-1975 42 Hayat Kamal/Appellant 20-10-1976 {{TABLE}} ' Appellant being appointee of 1976 was rightly and correctly shown at proper position in 1980 Seniority List but being dissatisfied with this position, he challenged it in the High Court of Sindh in Civil Petition No,D189 of 1981 which was allowed; but in appeal the Honourable Supreme Court of Pakistan set aside the findings of the High Court in Appeal No,30 of 1987 and seniority assigned to incumbent vide Annexure 'E' as quoted above remained intact. As such, the appellant cannot claim a fresh cause of action from this Tribunal in disregard of Supreme Court of Pakistan judgment by filing of instant appeal.
7. ' The service regulations prescribe method of recruitment/promotion as under:- ' Assistant Executive Engineers (Civil
(a) 50% by Promotion.
(b) 50% by Direct Recruitment. Degree in Engineering.
8. Assistant Engineers (Civil)
(a) 75% by Direct Recruitment where Departmental candidates eligible to complete with outsiders Degree in Engineering.
(b) 25% by Promotion from Departmental Overseers on the basis of Seniority-cum-Fitnss.
9. ' It has been added that Seniority List was maintained separtely as per mode of selection shown above, but Engineers having Degrees were kept and treated at par for the purpose of status, pay and promotion vide K.D.A. Engineers Service, First Amendments, Regulations, 1975. As for the averments of appellant that only the designation of Assistant Engineers was changed to that of Assistant Executive Engineers, the respondents have stated. That the facts are misinterpreted, misleading and misconceived. The Government had upgraded the status of Graduate Engineers wherever they were working in any capacity and the posts these Graduate Engineers were holding in former Class-II were upgraded to Class-I Junior, in all categories in the matter of pay and status.
10. Hence after issuance of Notification by the Government and adoption of Resolution by K.D.A, all Engineers having Degrees whether designated as Assistant Engineers or Assistant Executive Engineers were brought at par with each other and seniority reckoned from the date of regular appointment in the cadre. As such if an incumbent was appointed initially in Class-II earlier, being a Graduate Engineer then he will retain his seniority as such from the date of regular appointment.
11. Even after upgradation his seniority remained intact. Since all the 10 Private Respondents were Graduate Engineers and were regular appointees prior to 1976 when the appellant did not even exist in the department and were upgraded to Class-I Junior, hence in the matter of seniority, an appointees of 1976 cannot claim any vested right over and above those who were benefitted before the appellant's recruitment. Separate seniority List does not confer any preferential right to the appellant. They have also contested various averments of the appellant contained in paras. 8 to 15. They have further stated that vide Government Notification dated 11-2-1974 all the Graduate Engineers were upgraded to Class-I and their inter se seniority integrated. Hence by Governing Body Resolution dated 21-5-1977 appellant being, inductee in the year 1976 was assigned proper seniority, below private respondents, being upgradees of 1974 in BS-17. Thus, the Seniority List of 1980 was prepared which is intact today, after Supreme Court Judgment. They have clarified that neither Government of Sindh Notification nor 1977 Resolution say a word about seniority, but both of these, deal with nomenclature, status and pay-scales. Hence claiming seniority under both of these would be futile and thus the seniority will remain intact. The answering respondent being Competent Authority, after considering objections/representations had issued a consolidated final Seniority List of BS-17 vide Annexure 'E' under statutory and mandatory provision of law and there was no illegality in it, as such, it remained intact. The respondents in exigencies of service, promoted respondents Nos.2 and 3 on 9-12-1980, respondent Nos.4, 5 and 6 on 25-11-1981 as Executive Engineers being eligible academically, with required length of continuous service in K.D.A.
12. And appellant being junior most was not even considered by Departmental Promotion Committee.
13. The appellant neither challenged any promotion in 1980 nor their seniority in BS-18 as Executive Engineers. Thus, he had no claim against them after 18 years with the above -background. They have tated that the contents of paras. 22 and 23 of memo. Of appeal are admitted to the extent of issuance of Seniority Lists in the years 1992 and 1994. They have stated that C.P.No,D-2337 of 1992 and similarly Suit No,356 of 1993 were dismissed. Thus, the Seniority Lists of the years 1992 and 1994 were bonafidely prepared under declared law of Supreme Court and there is no illegality in it. They have cited various rulings of superior Courts including those quoted in the appellant's appeal that the Seniority List circulated by the respondents in the years 1992 and 1994 are valid, bona fide and issued as per principles laid down by the Supreme Court of Pakistan in the referred cases. They have further prayed that this appeal be dismissed as the appellant was not entitled to any relief in seniority so also any other relief in the circumstances of the case.
14. ' The private respondents Nos.2 to 6 and 8 have in their written statement narrated almost same facts and stated that after allowing Junior Class-I to the Assistant Engineers with effect from 28-3- 1972 they were equally being considered for the next higher promotion alongwith Assistant Executive Engineers and as such legally their seniority were combined although practically the Clerks of the Department continued to prepare separate Seniority List till 1977.
15. ' They have contested the averments of the appellant on the same grounds as by the respondent No,1 and having discussed in detail, the factors which led to the issuance of a combined Seniority List of the Graduate Engineers. In fact, their main burnt is on the plea that the designation in selection of Graduate Engineers BS-16 and 17 without any qualifying caluse was the main factor which resulted in adoption of the new policy, whereupon all the Graduate Engineers working in any organization were allowed BS-17 with effect from 1972. The appellant who entered in service in 1976 cannot claim any vested right to promotion in BS-18 over and above the Engineers who had graduated earlier to him and were already placed in BS-17 prior to his induction by whatever designation they were called. They have also stated that issuance of the combined Seniority List was on the basis of their representations and in the light of various rulings of the Courts that the issuance of separate Seniority List of Graduate Engineers was causing unrest amongst the subordinates, as they were being designated and treated separately by the clerical staff. They have also supported the version of respondent No,1 that these Seniority Lists i,e, those issued in 1980, 1992 and 1994 are based on one and same principle of first inducted, first in seniority and based on the cited judgment of the Supreme Court, which clearly stipulates seniority according to induction into service on regular basis on the basis of their qualification which is graduation in respect of the appellant as well as the respondents.
16. ' The. Advocate for the appellants while arguing the case stated that the issuance of Separate Seniority List for- Assistant Engineers/Assistant Executive Engineers was because of the existence of separate cadres in separate scales although the mode of selection was same, so also the qualification of graduation, without any special consideration for BS-17. And that the matter remained under consideration of various Courts, the appellant has come before this Tribunal after the Supreme Court order upon an amendment in the Sindh Service Tribunals Act, was notified and brought to the notice of Court. It was immediately after passing of orders of the Court on 10-3-1998 which was certified on 18/22-7-1998 that the appellant filed this appeal and hence the appeal was in time and was thus not attracted by the period of limitation, for the following rulings of the Superior Courts:--
(1) 1997 SCMR page 197, (2) 1999 PLC 1243, (3) 1998 SCMR 2296/2303, (4) PLb 1999 SC 990/1011 and
(5) 2000 SCMR 104 and (6)PLD 1997 SC 351.
17. ' On the merits of the case he has stated that the First Resolution of K.D.A. Passed in 1977 had been rightly interpreted where only the benefit of scale was awarded to Assistant Engineers and by subsequent amendment they were allowed the benefits of seniority also which was not admissible as per the following citations:-- ' PLD 1973 Lahore 332, 1985 SCMR 950/953-954, 1986 SCMR 1/4-5, 1989 SCMR 1879/1887 para. 18, 1995 SCMR 1859, 1985 PLC (C.S.) 163/9 and 1983 CLC 731/736 ' Advocate of respondent No,1 Mr. Abdul Lateef Ansari based his arguments on the points that in fact different Seniority Lists have been challenged at the same time which could not be done because the absic principles in both these Seniority Lists are different and are in fact based on the judgments of Courts during that time. However, the Seniority List of 1994 has since acquired finality, as it has been acted upon and even the appellant had got benefit of the said list, as he is now enjoying the status of Executive Engineer on the basis of his seniority determined in the year 1980.
18. On merits the appellant has no case as he has lost in all the superior forums and was thus compelled to file the present appeal, as he has not been successful' anywhere else. On the point of limitation also he has stated that the appeal was hopelessly time-barred as the appellant having the knowledge of the amendment since effected in the Sindh Service Tribunals Act, should have left all the forums and pursued his case, as was provided under the amendment, which he did not do and still pursued the matter before the Supreme Court which was dismissed. Only then he reverted to the Tribunal which shows his mala fide intentions and disregard of the laws of the land.
19. Therefore, he appealed for the dismissal of appeal on both the merits as well as on limitation relying on PLD 1976 SC 195.
20. ' Mr. M.M. Aqil Awan, Advocate for respondents Nos.2 to 6 and 8 taking up the limitation issue in the first instance stated that section 4 provided the period within which an appellant has to come before the Tribunal. Even after the amendments was made in the Tribunals Act the same was applicable to all the Civil Servants, declared as such by the Government.
21. ' On the merits of the case he stated that the prayers of the appellant amount to claiming relief under the Specific Relief Act for which this Tribunal is not competent, as it is only the High Court which could award such relief. Besides he has lost his case while arguing the appeal before the Supreme Court. Besides, no orders have been passed by departmental authority, therefore, any prayer in that regard could also not be granted. The appeal of the appellant before the departmental authority was still pending. On the limitation, he cited the following judgments:
(1) PU 1990 SC P.383 and (2) 1995 SCMR 1506 ' He also cited, that in this case the appellant had made more than one appeal to the authority and thus having exhausted all the available remedies, he cannot filed the present appeal as per PLD 1997 SC page 397. Besides, the Supreme Court had remanded the case, as such it had to be considered in the light of the limitation as well as on merits.
22. ' On merits of the case, he stated that the First Seniority List i,e, 15-9-1992 was prepared in the light of High Court decision dated 10-5-1992, in this list respondent No,2 is at Serial No,1 whereas the appellant is at Serial No,15. The second List dated 15-10-1994 shows appellant at Serial No,11 whereas respondent No,2 had already been promoted to the higher scale. Thus, the appellant had all along been junior to the respondents Nos.2 to 11, who were initially appointed in Class-II as Assistant Engineer on 5 12-1973, 8-2-1974, 26-2-1974, 21-8-1974, 7-5-1975, 15-8-1975, 15-8-1975, 15-8-1975, 1-11- 1975, 25-9-1975 and 17-6-1975 respectively. The Government of Sindh had earlier in the year 1974 notified the revised rules by which all the Graduate Engineers were to be treated to be in Senior Class-I frcm March, 1972 and thus all those recruited previous to the appellant were to be given the said benefit. Assistant Engineers or Assistant Executive Engineers became Senioir to the appellant by virtue of Government decision, duly adopted by K.D.A. It was, however, in the year 1977 that the nomenclature was changed and the appellant and respondents placed in one and same category which, in fact, was fully in compliance with Government decision that all Graduate Engineers are to be treated equally and without any discrimination which was the main aim of the said Government decision. Thus, all the Graduate Engineers were allowed seniority as was subsequently amalgamated in 1980. Thus, there had been no violation of any seniority rule or the decision of the Supreme Court but was, in fact, in compliance with the Supreme Court orders as laid down in 1989 SCMR page 1879.
23. ' Based on the above arguments he requested that the appeal of the appellant does not succeed on merits as well as on limitation, hence may be dismissed in the light of the above cited rulings as well as section 4, section 2(a) of the Limitation Act, and rule 32 sub-rule (iv) of the K.D.A. Rules.
24. After going through the arguments of the appellant as well as respondents, we have come to the conclusion that the Seniority Lists issued in 1992 and 1994 have since acquired finality as these were not challenged before any competent authority/forum within the period prescribed by law in respect of such matters, as ignorance of law could be no excuse, before any competent forum or Court of law. Besides, pursuing the matter before incompetent Courts will also not create any vested right to claim relaxation of limitation which does not encourage such requests. As the appeal is hopelessly time-barred, therefore, the said is dismissed on the point of limitation.
25. ' As far merits of the case are concerned, from the arguments advance by both the sides it has been found out that the Seniority Lists were based on the principles of regular appointment to the cadre and are based on the judgments of the Superior Courts as well as the Government decision, whereby all the Graduate Engineers were to be treated equally in respect of their status, emoluments, seniority and any other benefits as are available to Public Servants under the laws.
26. Allowing BS-17 and the consequent benefits from the date of recruitment or enforcement of rules allowing such benefits will, as such, be a consequent benefit allowed to Graduate Assistant Engineers on the basis of principles of natural justice. As there is no special consideration, higher qualification, or any other merits including attaining any position in the graduation examination, hence they just discriminate between the holders of same qualifications and thus were rightly done away with. The benefits which are now allowed to all Graduate Engineers treat them equally in all respects. Allowing status and emoluments and leaving aside seniority will be to discriminate them without any cause, as they possess the same qualification, thus they could only be treated equally if they are allowed all the consequent benefits including the seniority. The respondent No,1 has, therefore, rightly acted according to law, rulings of the Superior Courts and the decisions of the Government in amalgamating the Seniority Lists of the cadre of Assistant Engineers as for all practical purposes and assignments in the field there is no difference between Assistant Engineer or Assistant Executive Engineer. They have same powers and enjoy equal status amongst themselves. We, therefore, hold that there is no point in interfering in the Seniority Lists issued by the respondent No,1 which have since acquired finality and officers have already been promoted not only to BS-18 but to BS-19 also. Consequently the appeal is dismissed on merits as well with no order as to costs.
27. ' Given under our hands and the Seal of this Tribunal this 21st day of April, 2000 at Karachi.